I practice law -- criminal defense, civil liberties, and academic freedom/student rights cases. I'm a four-decade columnist and contributor to the Boston Phoenix, an alternative weekly, as well as an occasional contributor to The National Law Journal, Massachusetts Lawyers Weekly, The Wall Street Journal, The Boston Globe, and elsewhere. My books include Three Felonies a Day: How the Feds Target the Innocent (Encounter Books, 2009) and The Shadow University: The Betrayal of Liberty on America's Campuses (Harper Perennial, 1999; co-authored with Alan C. Kors). In 1999, Kors and I co-founded the Foundation for Individual Rights in Education (FIRE; www.thefire.org), a 501(c)(3) dedicated to the defense of individual liberties on campus. I live in Cambridge, Massachusetts with my wife, Elsa Dorfman, a portrait photographer.

Jeffrey MacDonald, Innocence, and the Future of Habeas Corpus

Inherent in any human endeavor is the possibility of error. In few arenas is this axiom more consequential—or more steadfastly ignored—than in the criminal justice system.

The week of September 17th, the Wilmington, NC, federal district court held a long-awaited evidentiary hearing in the case of Jeffrey MacDonald. This murder case, which occasionally has dominated (and of late has returned to) theheadlines, offers a chilling reminder of the importance of accuracy over thefinality of criminal verdicts when weighing innocence claims of the convicted. Inseeking to balance the supposed necessity of finality against the obvious need to protect the innocent from all-too-frequent errors, the case probes the viability and scope of the constitutionally-protected writ of habeas corpus, the procedural device for reviewing otherwise final judgments based on newly-discovered evidence.

This ancient legal right is deemed by scholars to be the single most important right inherited from the ancient Anglo-Saxon legal system and incorporated into the Constitution. Yet controversy has long swirled around habeas corpus on the question of whether it is aimed at assuring only that certain procedures be followed, or whether a case can be revisited, years or even decades later, if evidence arises that a convict turns out to be demonstrably innocent.

The MacDonald case puts front-and-center the pivotal question of whether the writ of habeas corpus should be available to the convicted, regardless of how many times a defendant has unsuccessfully attacked his conviction in the past. But this gets us ahead of the remarkable story of this case.

In 1970, the two young daughters and pregnant wife of Dr. Jeffrey R. MacDonald, an army physician stationed at Fort Bragg, North Carolina, were murdered. Such brutal slayings pock-marked an era of unparalleled tumult—a half year after the Manson Family murders, and two months after Altamont, at which four concert-goers died, the MacDonald murders underscored innocence lost.

It is perhaps for this reason that fascination surrounded the case. It didn’t hurt that the prime suspect—JeffreyMacDonald himself—was a Princeton-educated Green Beret. Though badly injured, he survived. Could he have perpetrated the killings, and orchestrated an elaborate cover-up in which he even stabbed himself within less than an inch of his heart?

MacDonald told investigators that four drugged-out intruders,three men and one woman, invaded his home, beat him unconscious, and murdered his family. To this day, he has stuck unwaveringly to this account.

Early on, MacDonald’s version of events was lent credence when an Army judicial officer found no credible evidence to bring formal charges against him. Though tasked only with determining whether cause existed to bring the case to a formalcourt martial, the officer went one step further: he declared the allegations “not true” and recommended that civilian authorities investigate Helena Stoeckley, a possible suspect who fit MacDonald’s description of the female intruder. Importantly, immediately after MacDonald, seriously injured and woozy, phoned for emergency assistance, a military policeman speeding to the scene spotted a woman with long blond hair and a distinctive floppy hat standing in the rain on a streetcorner near the MacDonald home. The MP’s description of this womanvery much lined up withMacDonald’s description of the female intruder, even though neither MacDonald nor the MP had heard the other’s description of her.

After MacDonald left the Army, U.S. Department of Justice prosecutors picked up the case, ignoring the Army investigator’s advice and instead focusing on MacDonald as their prime suspect. Nearly five years after his family was killed, MacDonald was indicted for murder. After a lengthy trial, he was convicted in July 1979 and sentenced to consecutive life sentences. Over the years the case became notorious for the mountain of evidence that the jurors did not hear.

It wasn’t long thereafter that a best-selling book by author Joe McGinniss, Fatal Vision, and a made-for-TV movie by the same name cemented MacDonald’s guilt in the publicand judicial eye. His repeated attempts to have courts look anew at his conviction were, until recently, for naught.

This has been due to the doctrine of “finality” of criminal judgments. In the early 1990s, efforts to end post-verdict attacks on findings of guilt blossomed in all three branches of the federal government. In 1991, just days before my colleagues and I were to file a brief seeking a new trial for MacDonald, the Supreme Court, in McCleskey v. Zant, raised the bar for habeas corpuspetitions. Despite accumulating evidence implicating Stoeckley and exonerating MacDonald, ourpetition, a federal district court ruled in 1991, did not overcome the heavy burden that suddenly favored finality.

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I have never corresponded with Jeff MacDonald nor any other prisoner, and you’re really taking cheap, personal shots over a purely academic discussion. To “profile” me based on the fact that I refer to the defendant by his first name isn’t just rude, it’s also desperate. Your personal attacks significantly reduce your credibillity and only serve to make you appear a bit desperate. The entire last paragraph of your post was completely uncalled for.

Stephanie, I just have to tell you that Macdonald was given a chest tube because HE said he needed one. Yes he had a pneumothorax, but, as Macdonald knew, this can be treated quickly and quite easily (I’m a medical professional myself, and you should know this as well as I do since you claim to be in the field), and he could’ve likely been treated without a chest tube. He was given one because he said he couldn’t breathe and exaggerated the condition, then specifically requested a chest tube. He was a surgeon- they didn’t question his competence. So, once again, his injuries were NOT life threatening. Not to mention the would to the lung was neat and clean, and not on the left side.

For God’s sake, stop the whining. And telling me to shut up is very rude. The fact is, inmate is in prison, and will stay in prison because he slaughtered his pregnant wife, Colette, and his two precious daughters, Kim and Kristy.

I, too, have studied the case, and read not only “Fatal Vision”, but “Fatal Justice” and “Wilderness of Error.” You groupies me laugh; you’ve been spewing the same garbage for years, and guess what? Your golden boy is still in prison.

The only reason his case has gone in front of the Supreme Court so many times is because his revolving door of lawyers keep on filing. However, I must admit that I admire the perseverance of Mac’s hard core groupies, in light of the fact that the majority of those who used to support him have bailed.

Inmate is a coward, and will never confess to his crimes. The only reason he applied for parole was so he could spend his final years with his nitwit of a wife, Kathryn. If she’s not careful, she’s going to end up in prison with him, with her two convictions for DUI, her conviction for shoplifting, and her latest, disturbing the peace. She is in financial ruin…but what did she expect? When you invest your money in a triple murderer, bad things are bound to happen.

Go ahead with your comments about how “hateful” and “mean” I am…it’s the same thing all Mac groupies can ever say. You can’t argue the evidence, as there is NO evidence of inmate’s innocence; all you can come back with is silly, personal insults. So, let me have it. The fact is, your hero is in prison, and this monster will stay in prison until he’s carried out in a pine box.

Wow. I have never been called a “groupie” of any kind. You folks certainly do take an us-against-them mentality. I apologize for attempting to have an educated discussion with reasonable adults. It’s amazing how much negativity you people are putting forth to argue your case. Considering that it’s essentially a rhetorical situation because none of our opinions really amounts to a pee drop in a piss pond. But it never ceases to amaze me how vicious people get on blogs. When you talk about “rude insults,” perhaps you should review your own post. You refer to people as “macgroupies,” “cowards,” “nitwits” etc. It must be lonely up there where you are.I don’t intend to comment further. You people are entirely too sophomoric.

Stephanie, I think you missed the irony of YOU calling others sophomoric, but that’s neither here nor there. What I found laughable was your statement about people who were “proven innocent” suffering injustice. Proven?? Ha! Go ahead and list this proof, in any order. You can’t. Because there is no proof. Macdonald’s hair in Collette’s hand was just brushed off as a natural occurrence by the defense, but if an unidentified hair is found anywhere else in the home, it clearly proves he didn’t do it. How convenient! The police botched the original search, and they had probably contributed their own evidence to the scene. I wouldn’t be surprised if one or more of these three hairs were traced back to them. And by the way, everyone’s home will have physical elements of others left behind- when you enter and leave a room, you leave evidence behind and evidence generally leaves on you. Pretty basic principle. But when that becomes inconvenient to the defense, they just ignore it and try to flash some cockamamie theory in front of you so that you might not notice the fact that the same evidence they’re twisting to prove innocence is actually contradictory to their case. I guess you got distracted, Stephanie.

I am with you Harvey, this case was a gross miscarriage of justice and I have been interested in and have followed this case for almost 20 years as a young adult. I can hardly wait for Jeffery to be freed, i truly can’t see how the judge can see it any other way at this point. I would love to meet him too……all the naysayers jump on the bandwagon of Joe Mcginnis who switched sides to appease the bandwagon of one sided opinions on the case. He was sued and had to pay a small amount of money to Jeffrey MacDonald…..he is a farce and I for one can’t wait for this to be over……remember- anyone can make someone ‘look’ guilty, especially in the 70′s and 80′s….just be thankful it isn’t you…….there’s an awful lot of innocent ppl in jail who shouldn’t be there……Exhibit A- right here…. http://gma.yahoo.com/man-jailed-1962-murders-freed-230010818–abc-news-topstories.html

I just completed reading the book Fatal Justice and it finally justified all the doubts I ever had that Jeffrey McDonald had committed these crimes. It confirmed his innocence. Now those of you who want to hold on to the prior information obtained in slanderous books/movies such as Fatal Vision need not read any further or write any more comments. We know the past stories. But….if you want to start from a fresh, untarnished perspective with an open mind read this book. The Freedom of Information Act finally allowed alot of evidence that the prosecutors and Judge Dupree wou d not allow in because of being past the date. WHEN is it ever right or correct in the NAME of JUSTICE to ignore evidence that will free an innocent man because it has been found too late??? New technologies make that law moot. Look at all those that have been freed due to new DNA testing. Look at those that have left death row because they were innocent…or with innocence proven too late-they left deceased. Stop holding on to fallacies from the past. Rhetoric that has been repeated so often it has become its own evidence of correctness. It is not true. I live in Fayetteville, NC. I have always wondered how this verdict came to be. My mother always thought him innocent. If the evidence can be heard and submitted, this travesty can finally be corrected at least for the time left to Jeffrey McDonald. All the guilty that have confessed and those that have not have died already and are free from man’s justice. Hear the evidence! And for those laypeople in doubt or judges who will not consider….read the book God bless Mr. MacDonald and his lawyers and God speed to freedom.

Doris, Fatal Justice…? You are about 17 years too late. Most of us that have followed this case read it long ago. It’s a mess of a book and actually does Macdonald more harm than good by making it clear that his defense desperately grasps at straws. A few points… The “multiple bloody gloves” are actually oven mitts that contained traces of blood too small to even be typed. The gloves are seen in crime scene photos hanging on a hook by the kitchen sink where they were kept by Colette. Certainly you are not willing to believe the crazy drugged out hippies entered the home, retrieved oven mitts from the kitchen, savagely murdered 3 people without getting any significant blood on them and then hung them back on the hook where they belong after they were done! Also, FJ would lead you to believe that the prosecution misrepresented the black fibers on the murder club to be pj fibers, but truth is, there WERE pj fibers on the club along with other fibers that were unsourced. Macdonald’s defense has conceded for many years that there were pj fibers on the club. Even Potter and Bost concede this in their endnotes if you will read them carefully though the authors try very hard to make it seem the prosecution lied about the pj fibers. And the “mystery hair” in Colette’s hand that Potter and Bost claim is the forcibly removed hair of her murderer… Well that hair has been sourced to Macdonald through DNA testing. So at least the author’s were correct on one point, that hair WAS the hair of the real killer in this case.